State ex rel. Riddle v. Oliver

487 P.3d 815

STATE of New Mexico, EX REL. M. Keith RIDDLE, in his official capacity as Clerk of Catron County, and Chair of the New Mexico County Clerks Affiliate; Shelly K. Trujillo, in her official capacity as Clerk of Sierra County, and Chair Elect of the New Mexico County Clerks Affiliate; Linda Stover, in her official capacity as Clerk of Bernalillo County, and Vice President of the New Mexico Association of Counties ; Michelle E. Dominguez, in her official capacity as Clerk of Cibola County; Rayetta M. Trujillo, in her official capacity as Clerk of Colfax County; Rosalie A. Gonzales Joiner, in her official capacity as Clerk of De Baca County; Amanda Lopez Askin, in her official capacity as Clerk of Dona Ana County; Robin Van Natta, in her official capacity as Clerk of Eddy County; Marisa Castrillo, in her official capacity as Clerk of Grant County; Patrick Z. Martinez, in his official capacity as Clerk of Guadalupe County ; C.J. Garrison, in her official capacity as Clerk of Harding County; Melissa K. De La Garza, in her official capacity as Clerk of Hidalgo County ; Naomi D. Maestas, in her official capacity as Clerk of Los Alamos County; Andrea Rodriguez, in her official capacity as Clerk of Luna County; Harriett K. Becenti, in her official capacity as Clerk of McKinley County; Carlos Arellano, in his official capacity as Clerk of Mora County; Robyn Holmes, in her official capacity as Clerk of Otero County; Ellen L. White, in her official capacity as Clerk of Quay County; Linda J. Padilla, in her official capacity as Clerk of Rio Arriba County; Geraldine E. Gutierrez, in her official capacity as Clerk of San Miguel County; Eileen Garbagni, in her official capacity as Clerk of Sandoval County; Geraldine Salazar, in her official capacity as Clerk of Santa Fe County; Betty Saavedra, in her official capacity as Clerk of Socorro County; Anna Martinez, in her official capacity as Clerk of Taos County; Linda Jaramillo, in her official capacity as Clerk of Torrance County; Mary Lou Harkins, in her official capacity as Clerk of Union County; and Peggy Carabajal, in her official capacity as Clerk of Valencia County, Petitioners,

v. Maggie Toulouse OLIVER, in her official capacity as Secretary of State, Respondent,andRepublican Party of New Mexico, Dave Kunko, Chaves County Clerk, Keith Manes, Lea County Clerk, Whitney Whittaker, Lincoln County Clerk, Tanya Shelby, San Juan County Clerk, Senator Stuart Ingle, Senator Craig Brandt, Senator Bill Burt, Senator Gregg Fulfer, Senator Gay Kernan, Senator Mark Moores, Senator Steve Neville, Senator Cliff Pirtle, Senator Sander Rue, and Senator William Sharer, Representative Jim Townsend, Representative Phelps Anderson, Representative Gail Armstrong, Representative Rachel Black, Representative Paul Bandy, Representative Cathrynn Brown, Representative Jack Chatfield, Representative Zach Cook, Representative Randal Crowder, Representative Candy Ezzell, Representative David Gallegos, Representative Jason Harper, Representative Tim Lewis, Representative Rod Montoya, Representative Greg Nibert, Representative Jane Powdrell Culbert, Representative Bill Rehm, Representative Gregg Schmedes, Representative Larry Scott, Representative James Strickler, and Representative Martin Zamora, Intervenors.

No. S-1-SC-38228

Supreme Court of New Mexico.

Filing Date: May 6, 2021

In Accord, PC, Daniel A. Ivey-Soto, Albuquerque, NM, for Petitioners

Office of the Secretary of State, Tonya Noonan Herring, General Counsel, Albuquerque, NM, Dylan Kenneth Lange, Special Assistant Attorney General, Santa Fe, New Mexico, for Respondent

Harrison & Hart, LLC, Carter B. Harrison IV, Albuquerque, NM, for Intervenors

Office of the Governor, Matthew L. Garcia, Chief General Counsel, Jonathan Jacob Guss, Deputy General Counsel, Santa Fe, NM, for Governor Michelle Lujan Grisham

Hinkle Shanor LLP, Thomas M. Hnasko, Santa Fe, NM, Michael B. Browde, Albuquerque, NM, for The New Mexico Legislative Council

Elsner Law & Policy, LLC, Gretchen Elsner, Santa Fe, NM, for The Democratic Party of New Mexico

Stephen P. Curtis Attorney at Law, PC, Stephen P. Curtis, Albuquerque, NM, for The Libertarian Party of New Mexico

Felicia L. Orth, Los Alamos, NM, for Amicus Curiae League of Women Voters of New Mexico

Hall & Monagle, LLC, Levi A. Monagle, Albuquerque, NM, Preston Michael Sanchez, Albuquerque, NM, Tim Gardner, Albuquerque, NM, Sara K. Berger, Portland, OR, Leger Law & Strategy, Teresa Isabel Leger, Santa Fe, NM, NM, for Amici Curiae Like-Minded Organizations Joining the League of Women Voters Amicus Brief: Common Cause, American Civil Liberties Union of New Mexico, Disability Rights of New Mexico, Native American Voters Alliance Education Project, and Santo Domingo Pueblo

Antoinette M. Sedillo Lopez, Albuquerque, NM, for Amicus Curiae University of New Mexico Constitutional Law Professors

And Justice Legal, LLC, dba And Justice Law, Melanie Joyce Rhodes, Albuquerque, NM, The Bopp Law Firm, PC, James Bopp, Jr., Corinne L. Youngs, Amanda L. Narog, Terre Haute, IN, for Amici Curiae Ronnie Cisneros, Darryl Dunlap, Stacie Ewing, Lynn Lewis, Jessica Sanders, Joe Delk, Dan Banks, Carolyn Banks, David Cheek, Timothy Burke, and Joye Burke

Navajo Nation Department of Justice, Doreen M. McPaul, Paul W. Spruhan, Window Rock, AZ, for Amicus Curiae Navajo Nation

VIGIL, Chief Justice.

{1} Petitioners are twenty-seven county clerks who sought an emergency writ to compel Respondent, Secretary of State Maggie Toulouse Oliver, to mail absentee ballots directly to all registered voters in lieu of conducting in-person voting in the June 2020 primary election. They requested this extraordinary relief because the primary election was scheduled amidst a global pandemic and national and statewide public health emergency: COVID-19, a new, potentially fatal, viral disease was spreading unchecked throughout the population. Petitioners alleged that in-person voting could not be conducted safely under those circumstances, and they urged us to hold that the requested relief was necessary to protect the health of election workers, voters, and the general public. Respondent stipulated to the petition.

{2} We allowed the intervention of the Republican Party of New Mexico, thirty-one state legislators, and other county clerks, who argued that the Election Code, NMSA 1978, §§ 1-1-1 to 1-26-6 (1969, as amended through 2020) (noting that all 2020 amendments take effect on January 1, 2023), does not allow elections to be conducted entirely by mail and that it would violate separation of powers principles for a nonlegislative branch of government to implement an alternative election procedure. We requested responses from the Governor of New Mexico, the New Mexico Legislature, the Democratic Party of New Mexico, and the Libertarian Party of New Mexico. We also granted leave to file amicus curiae briefs to the University of New Mexico Constitutional Law Professors, Ronnie Cisneros et al., the Navajo Nation, and the League of Women Voters of New Mexico joined with Common Cause, American Civil Liberties Union of New Mexico, Disability Rights New Mexico, Native American Voters Alliance Education Project, and Santo Domingo Pueblo.

{3} We conclude that the Election Code does not permit the Secretary of State to mail absentee ballots directly to voters without a prior request from the voter. However, the Election Code permits the Secretary to mail absentee ballot applications to voters to encourage and facilitate absentee voting. We further conclude that, under the circumstances created by the COVID-19 pandemic, including the clear and present risk to public health presented by mass gatherings and the executive orders mandating that all branches of government take all lawful steps to mitigate that risk, the Secretary of State had a duty to exercise her power to the fullest extent of the law to promote the safety of election workers and voters while conducting the June 2020 primary election. Therefore, we issued a writ of mandamus ordering the Secretary of State to mail absentee ballot applications to eligible voters to encourage absentee voting and minimize the health risk to the public. This remedy promotes the public health goals mandated by the Governor while not infringing on the Legislature's plenary power to establish election procedures. We issue this opinion to explain our reasoning.

I. BACKGROUND

A. The COVID-19 Pandemic and the Executive Response

{4} This case arose in the spring of 2020, when New Mexicans faced the prospect of holding their first election since the outbreak of the COVID-19 pandemic. At the time we issue this opinion, the pandemic is ongoing. The public is intimately aware of the origins and early development of the pandemic, as the details of these events have indelibly marked the lives of those who witnessed them unfold. Nevertheless, we recount some salient facts here to provide context for the events at issue in this case.¹

{5} COVID-19 is the name of the disease caused by the virus SARS-CoV-2, a novel coronavirus first detected in Wuhan, China, in December 2019. World Health Organization (WHO), Coronavirus disease (COVID-19), What is COVID-19? (Oct. 12, 2020).² It produces a wide range of symptoms including fever, chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, loss of taste, loss of smell, sore throat, congestion, runny nose, nausea or vomiting, diarrhea, persistent pain or pressure in the chest, confusion, inability to wake or stay awake, and bluish lips or face. Centers for Disease Control and Prevention (CDC), Symptoms of Coronavirus (Feb. 22, 2021).³ While some people who contract the virus experience no symptoms, others can develop severe pneumonia, experience neurological problems including seizures, and suffer blood clots and strokes. Harvard Medical School, COVID-19 basics (Mar. 9, 2021).⁴ Of those who develop symptoms, "[a]bout 15% become seriously ill and require oxygen and 5% become...